GENETIC ENGINEERING OF DOMESTIC ANIMALS:HUMAN PREROGATIVE OR ANIMAL CRUELTY?

By

MICHELLE K. ALBRECHTr*

Selective breeding and genetic engineering of domestic animals representtwo of science's most manipulative advancements of the last century. One ofthe many questions raised by these procedures is whether the suffering pro-duced violates state anti-cruelty laws. California's animal anti-cruelty stat-ute is one of the most comprehensive and progressive in the country. Thisarticle examines whether selective breeding and genetic engineering violateCalifornia's anti-cruelty statute, highlighting recent California case law in-terpreting these statutes and outlining the standard to determine when aviolation has occurred. Furthermore, the article seeks to articulate policysuggestions to further the protection afforded these animals affected byscience.

"We are all of us guinea pigs in the laboratory of God."1

I. INTRODUCTION

Humans have been manipulating animals through the use of se-lective breeding and genetic engineering for over one-hundred thou-sand years.2 Selective breeding for specific traits has producedvirtually every known breed of domestic animal in existence today.3

"In animals, genetic mutations are created to reduce disease, and oth-erwise improve health or increase weight."4 Unfortunately, many ofthese mutations have resulted in the development of uncomfortableand painful traits in domestic animals.5 Exploitation of these animalshas continued due to the notion that animals are property and do not

* J.D., Whittier College of Law, summa cum laude, 1999; BA., University of SanDiego, cum laude. The author wishes to thank her mother, Wil Albrecht, for her contin-uing love and support throughout the years.

I TENNESSEE WuLLAMS, FAmious AmEwCAN PLAYS op THE 1950s 202 (1962).2 Terri A. Jones, Patenting Transgenic Animals: When the Cat's Away, the Mice Will

Play, 17 VT. L. REv. 875, 877 (1993).3 Paul Blunt, Selective Breeding and the Patenting of Living Organisms, 48 SIMA-

CUSE L. REv. 1365, 1380 (1998).4 Joanna Ramey, Group Sues FDA on Genetic Labeling, SupwntAnER 'r NEVS, June

1, 1998, at 82.5 MICHAEL J. REISS & ROGER STRAUGHAN, IMPROVING NATURE?: TiE SCIENCE AND

ETmcs op GENETIC ENGINEERING 177 (1996).

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have rights. 6 "While the efforts of the animal rights movement haveproduced some minor gains in the legal status of animals... [animals]remain legally unrecognized and unprotected."7

This Comment discusses whether selective breeding and the ge-netic engineering of domestic animals violates California's anti-crueltystatute. Section II discusses the development of the property status foranimals and their current legal status in the United States, concludingwith the historical development of anti-cruelty statutes. Section IIIdiscusses California's anti-cruelty provisions and the judicial interpre-tation of their application. Section IV outlines the history of selectivebreeding and the development of the genetic engineering of domesticanimals. Further, examples of animals that have been bred to exhibitpainful traits are analyzed in light of California's anti-cruelty statute.Section V suggests reforms in selective breeding and genetic engineer-ing that would better protect animals. Finally, Section VI explains theproblems of selective breeding and concludes that a new solution needsto be implemented to save animals from further suffering.

II. THE DEVELOPMENT OF LEGAL PROTECTIONS FOR ANIMALS

Virtually all uses of animals that produce some benefit to humansare regarded as legitimate.8 Currently, animals are considered mereentities and the property of humans. As entities, they do not have legalrights.9 Therefore, animals cannot be adequately protected by our le-gal system. 10 Lacking the fundamental rights to life and freedom fromcruel and inhumane treatment, the only applicable requirement is thatanimals not be wasted or made to suffer in the absence of a legitimatesocial benefit. 1 This status allows humans to sell their animals, eat orkill them, and use them for entertainment purposes. 12 As a result, ani-mals are enslaved, restrained, mutilated, tortured, and killed with thesupport of our justice system.13 These conditions exist in slaughter-houses, factory farms, breeding projects, and through geneticengineering.

More specifically, the current prevailing attitude towards animalscan be explained through the theory of legal welfarism. Legal welfar-

6 Thomas G. Kelch, Toward a Non-Property Status for Animals, 6 N.Y.U. ENWrL.L.J. 531, 532 (1998).

7 Susan Finsen, Obstacles to Legal Rights for Animals, 3 Animal L. i, i (1997).8 GARY L. FRANcIoNE, ANIMALS, PROPERTY, AND THE LAW 24 (1995). Professor Fran-

cione provides a detailed discussion of the development of various legal theories andlaws protecting animals. Interested readers should consult this source for a more de-tailed discussion of the issues discussed in this portion of the comment.

9 Gary L. Francione, Animals, Property and Legal Welfarism: "Unnecessary" Suffer-ing and the "Humane" Treatment of Animals, 46 RUTGERS L. REV. 721, 723 (1994).

10 Id.11 FRANCIONE, supra note 8, at 35.12 Id.13 Derek W. St. Pierre, The Transition from Property to People: The Road to the Rec-

ognition of Rights for Non-Human Animals, 9 HASTINGS WOMEN's L.J. 255, 255 (1998).

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ism is the concept that animals, as human property, may be used byhumans as a means to an end, so long as this exploitation does notresult in the infliction of "'unnecessary pain,' suffering or death."14 Ac-cording to this theory, in order to determine what constitutes humanetreatment and unnecessary suffering, human interests must be bal-anced against those of animals. 15 Consequently, an animal's value ismeasured in terms of its reasonable and efficient use to humans,' 6 andnot in terms of the animal's self-interest or inherent value. 17

Another legal theory affecting the legal status of animals is classi-cal utilitarianism. Utilitarianism aspires to create the greatest happi-ness for the greatest number of people.' 8 Within this theory, animalsonly serve to enhance human happiness. 19

Although the theories of legal welfarism and classical utilitarian-ism share the premise that humans are of paramount importance, theresult of their treatment towards animals is very different. Legal wel-farism advocates using animals to the extent of their usefulness.Whereas, classical utilitarianism supports the protection of animalsagainst cruelty "because such cruelty might affect the nature ofhumans and thereby change the way humans deal with each other."20

With these theories forming the basis of human beliefs about thevalues of animals, it is not surprising that the common law has notrecognized cruelty to animals as an offense. 2 1 Only through state anti-cruelty statutes are the concerns about the use and treatment of ani-mals addressed. Prior to these anti-cruelty statutes, animals were onlyprotected "through statutory prohibitions of malicious mischief andtrespass." 2 2 Malicious mischief generally required that the act includemalice towards the owner of the harmed animal, not just towards theanimal.2 3 "Today, however, most jurisdictions have enacted statuteswhich make it a criminal offense to treat an animal with cruelty."2 4

Anti-cruelty statutes typically define the type of animal it protects andthe scope of the protection, including "the conduct prohibited, themental state of the actor, and the penalty."2 5 Despite the seeming in-

14 FRANcioNE, supra note 8, at 18.

15 Id.16 St. Pierre, supra note 13, at 259.

17 Id18 Susan Emmenegger & Axel Tschentscher, Taking Nature's Rights Seriously: The

Long Way to Biocentrism in Environmental Law, 6 GEO. INT'L EN rM. L. lav. 545, 556(1994).

19 Id. at 557-58.20 Id. at 557.21 FRANCIONE, supra note 8, at 121.22 Francione, supra note 9, at 750.

23 Id.24 Thomas R. Malia, Annotation, Applicability of State Animal Cruelty Statute to

Medical or Scientific Experimentation Employing Animals, 42 A.L.R 4TH 860 (1986).For an excellent overview of state anti-cruelty laws, see Pamela Frasch et al., StateAnti-cruelty Statutes: An Overview, 5 ANnL&. L. 69 (1999).

25 Francione, supra note 9, at 751.

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terest in protecting animals, the driving force behind the enactment ofthese laws is an extension of the legal theories of welfarism and utilita-rianism-to preserve a moral society.2 6 Accordingly, anti-cruelty stat-utes are still "designed to prevent 'unnecessary' suffering, and do notcreate.. . 'rights' for [ I animals."27 Similarly, even though the effect ofanti-cruelty laws may limit a property owner's treatment of an animal,property rights remain the paramount basis to determine an animal'sprotections under the law.28 Since these statutes are "not intended tounreasonably interfere with a [person's] use or enjoyment of [ I ani-mals, [ I not every act which causes pain and suffering to the animal isprohibited."

29

Generally, anti-cruelty statutes are applicable to any "animal."30

However, some states' statutory definitions have been narrowedthrough statutory language to exclude certain types of animals, suchas livestock and insects. 31 Other states have failed to provide any gui-dance, thereby leaving the interpretation of which animals are pro-tected under their respective statutes to the judiciary.3 2

Besides defining the term "animal," some states have also definedthe scope of animal cruelty in their statutory scheme. For example,New York has defined cruelty to encompass depriving an animal of"necessary sustenance," such as denying food, water, or shelter.33

States using this language limit convictions to actions which result inthe deprivation of "necessary sustenance."34 However, many stateanti-cruelty laws extend the protections afforded animals even fur-ther.35 One such state is California, which has one of the most compre-hensive anti-cruelty statutes in the United States.36

26 Charlotte A. Lacroix, Another Weapon for Combating Family Violence: Preventionof Animal Abuse, 4 ANIMAL L. 1, 13 (1998).

27 St. Pierre, supra note 13, at 259.

28 FRANciNo, supra note 8, at 24.

29 Malia, supra note 24, at 860.

30 Lacroix, supra note 26, at 13. See also State v. Stockton, 333 P.2d 735, 736 (Ariz.

1958) (excluding gamecocks from the animal cruelty statute); Commonwealth v. Mas-sini, 188 A.2d 816 (Pa. Super. Ct. 1963) (failing to consider a cat a "domestic animal" forpurposes of the anti-cruelty statute).

31 Lacroix, supra note 26, at 13.

32 Id. See, e.g., ALA. CODE § 13a-11-14 (1997); FLA. STAT. ANN. § 828.12 (West 1998);

MONT. CODE ANN. § 45-8-211 (1997).33 Francione, supra note 9, at 751.34 Id. at 752.

35 See generally Frasch et al., supra note 24 (discussing the provisions of variousstate anti-cruelty statutes).

36 Nicole Fox, The Inadequate Protection of Animals Against Cruel Animal Hus-bandry Practices Under United States Law, 17 WHrrrIER L. REV. 145, 158 (1995). Ironi-cally, although California's anti-cruelty statute is one of the most comprehensive inscope, it explicitly exempts farm animals from protection. See CAL. PENAL CODE § 599c(West 1998).

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III. ANALYSIS OF CALIFORNA's ANTI-CRUELTY STATUTE

"Each year, humans kill [eight] billion[ I] animals for food, cloth-ing, entertainment and research."37 While these uses of animals mayseem cruel and unnecessary to some, these practices are generally ac-ceptable within society and are not legally cruel. However, even withinthis rubric, it is difficult to justify mutating animals to exhibit painfultraits when it causes the animals to suffer needlessly for human gain.California's anti-cruelty statute would seem to support thissentiment.38

A Statutory Language

California has one of the nation's most rigid anti-cruelty laws. Forexample, California Penal Code section 599b defines cruelty to includeany act or omission "whereby unnecessary or unjustifiable physicalpain or suffering is caused or permitted."39 In addition to this broadscope, the anti-cruelty provisions include rigorous enforcement mea-sures.40 For example, California Penal Code section 597(b) states thatany person who has "the charge or custody of any animal, either asowner or otherwise, [and] subjects any animal to needless suffering, orinflicts unnecessary cruelty upon the animal, or in any manner abusesany animal ... is guilty of a... misdemeanor ... or... a felony ....- 41Despite the potential beneficial effect of these statutes on animals,their main focus remains preserving human property interest in ani-mals. 42 Illustrating this point, California Penal Code section 599b de-fines "animal" to include "every dumb creature."43

Furthermore, California's anti-cruelty statute expressly exemptsanimals that endanger humans or their property, farm animals, and

37 Laura G. Kniaz, Animal Liberation and tie Law: Animals Board the Underground

Railroad, 43 BuFF. L. REv. 765 (1995).38 See CAL. PENAL CODE § 597(b) (West 2000) ("person who ... subjects any animal

to needless suffering, or inflicts unnecessary cruelty ... is... guilty of a crime"). But seeCAL. PENAL CODE § 599c (West 2000) ("No part of this title shall be construed as inter-fering with... the right to kill [ I] animals used for.., properly conducted scientificexperiments or investigations performed under the authority of the faculty of a regu-larly incorporated medical college or university of this state.").

39 CAL. PENAL CODE § 599b (West 2000).40 See CAL. PENAL CODE §§ 597(a)-(c) (West 2000) (imposing imprisonment in state

prison and/or a fine of $20,000); CAL. PENAL CODE § 599aa(a) (West 2000) (pro-iding for

seizure of fighting animals); CAL. PENAL CODE §§ 600.2, 600.5 (West 2000) (penalty fordeath of guide, service, or signal dog). See also CAL. PENAL CODE §§ 597(a), (c), 597(1)(West 2000).

41 CAL. PENAL CODE § 597(b) (West 1999) (emphasis added). "A felony is a crimewhich is punishable with death or by imprisonment in the state prison. Every othercrime or public offense is a misdemeanor except those offenses that are classified as aninfraction." CAL. PENAL CODE § 17(a) (West 2000). A misdemeanor is punishable by im-prisonment or fine. CAL. PENAL CODE § 17(b) (West 2000).

42 FRANcIoNE, supra note 8, at 125.

43 CAL. PENAL CODE § 599b (West 1999).

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"laboratory animals" used for experimentation. 44 These activities areexcluded from the scope of California's anti-cruelty statute becausethey represent types of animals and corresponding conduct that arethought to be beneficial to human beings. 45 Ordinarily, experiments onanimals, conducted in good faith and without the reckless, unreason-able, or deliberate infliction of unnecessary pain and suffering, do notconstitute cruelty.46 Despite significant evidence indicating that ani-mals have the capacity to suffer pain and possess complex cognitiveabilities,47 "incidental" animal suffering is regarded as necessary orhumane.48 As a result, a defendant accused of animal cruelty can eas-ily preclude criminal liability by arguing that the conduct was neces-sary to achieve an accepted end. Consequently, this conduct should notbe exempted from the reach of the anti-cruelty statute. 49 Therefore,even though California has adopted one of the most facially compre-hensive anti-cruelty statutes in the country, there remain many waysto avoid the intended effects of the statutory scheme.

B. Judicial Interpretation

California appellate courts have had ample opportunity to inter-pret the anti-cruelty statute. However, judicial interpretation of thelevel of intent required to convict under the anti-cruelty statute variesfrom case to case.50 Under one line of reasoning, in order to convict adefendant, his actions need only be committed with ordinary negli-gence. 51 On the other hand, other judges have required that the of-fender's actions demonstrate criminal negligence. 52 Negligence isdefined in the California Penal Code as "import[ing] a want of suchattention to the nature of probable consequences of the act or omission

44 CAL. PENAL CODE § 599c (West 1998).45 The statute states in relevant part:No part of this title shall be construed as interfering with... the right to destroy... any animal known as dangerous to life, limb, or property, or to interfere withthe right to kill [ I animals used for food, or with properly conducted scientificexperiments or investigations performed under the authority of the faculty of aregularly incorporated medical college or university of this state.

CAL. PENAL CODE § 599c (West 1999).46 4 AM. Jur. 2D Animals § 29 (1995).47 Steven J. Havercamp, Are Moderate Animal Welfare Laws and Sustainable Agri-

cultural Economy Mutually Exclusive? Laws, Moral Implications, and Recommenda-tions, 46 DRAxE L. REv. 645, 671 (1998). There are similarities between thecommunications of chimpanzees and humans. Id. at 671-72. In addition, both chimpan-zees and humans are capable of having very complex sign language conversations. Id.

48 FRANcioNE, supra note 8, at 130.49 Francione, supra note 9, at 751.50 Sonja A. Soehnel, Annotation, What Constitutes Offense of Cruelty to Animals-

Modern Cases, 6 A.L.R. 5TH 733 (1992). See CAL. PENAL CODE § 597(a) (West 2000)(requiring "maliciously and intentionally"); CAL. PENAL CODE § 597a (requiring "know-ingly and wilfiully"). Other sections do not use any mental state words. For example,section 597f uses the word "permits." CAL. PENAL CODE § 597f (West 2000).

51 See infra Part III.B.1.52 See infra Part III.B.2.

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as a prudent [person] ordinarily bestows in acting in his own con-cerns."53 The following cases demonstrate that this statutory defini-tion is open to broad judicial interpretation.

1. Ordinary Negligence

Under the ordinary negligence approach, California courts haveimposed liability on those who act without malice or intent, merely re-quiring negligence on the part of the actor.54 The court in People v.Farley5 5 held that a conviction under the anti-cruelty statute requiresa showing that the "defendant was negligent in that he intentionally[and voluntarily] did an act... from which harm to the animals wasreasonably foreseeable."56 In Farley, the defendant was convictedunder California Penal Code section 597(b) for subjecting a horse to"needless suffering and unnecessary cruelty." 7 The court further an-nounced that a violation of the statute is a general intent crime, not aspecific intent crime.58 Under the common law, a general intent crimerequires that the state prove that the actor "knowingly" committedthat act. A defense to a general intent crime is an honest and reasona-ble mistake of fact. Having to prove this level of intent makes a convic-tion under section 597(b) more difficult to secure.

2. Criminal Negligence

Recently, other California courts have held that proving contra-vention of section 597(b) of the California Penal Code requires thepresence of criminal negligence.59 In Farley, the defendant was foundguilty of neglecting her animals, but not of criminally neglecting them.Thus her conduct did not amount to a "reckless, gross or culpable de-parture from the ordinary standard of due care," which the court inPeople v. Brian60 held as the standard to prove criminal negligence.61

In People v. Speegle,62 the court established a three part test todetermine whether the defendant has violated section 597(b) of theCalifornia Penal Code.63 In order to prove criminal negligence, the fol-lowing elements must be proved: 1) the person is responsible for pro-viding care to the animal; 2) the person committed a "grosslynegligent" act or omission; and 3) the act or omission endangered theanimal's life. 64 In this case, the jury convicted the defendant of a felony

53 CAL. PENAL CODE § 7 (West 2000).54 FRANCIONE, supra note 8, at 121.55 33 Cal. App. 3d. Supp. 1 (Ct. App. 1973).56 Id. at 10.57 Id at 2.58 Id. at 10.59 Id60 '110 Cal. App. 3d Supp. 1 (Ct. App. 1980)61 Id. at 2.62 53 Cal. App. 4th 1405 (Ct. App. 1997).63 Id. at 1413.64 Id.

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for animal cruelty after making the specific finding that she subjectedthe animals to unnecessary suffering.65

Although California courts have interpreted the anti-cruelty pro-visions regarding abusive conduct, their analysis is not exhaustive. Be-cause a finding of "unnecessary suffering" requires a fact-specificinquiry into the circumstances of each case, the question of whetherbreeding animals to engineer painful genetic mutations qualifies as"unnecessary" under section 597(b) of the California Penal Code re-mains unclear and controversial. For instance, the Speegle court foundanimal cruelty where no food and water was readily available for theanimals. In this case, there was "extensive matting of fur, fleas, eyeand ear problems, ear mites, intestinal parasites, no fixed teeth, andmouth disease, and they were under weight, anemic and malnour-ished."66 Many of these factors would not exist in a genetic engineeringcontext, so it is impossible to speculate as to a court's reaction to pain-ful mutations.

IV. SELECTIVE BREEDING AND GENETIC ENGINEERING

Biotechnology, which includes selective breeding and genetic engi-neering, has been characterized as a "field that is capable of modernday miracles."67 The controlled breeding of animals "has produced vir-tually all the known breeds of domesticated animals, modifying ex-isting animals to maximize their usefulness" to humans. 68

"Traditionally, animal breeding practices have included selectivebreeding within species and cross-breeding between closely relatedspecies."69 Selective breeding allows a breeder to produce specified de-sired characteristics within animals by breeding those animals thatexhibit that specified or dominant trait.70 Selective breeding is therebycapable of making significant changes in a given species that easilyrecur in subsequent generations. 71 However, despite the breeders' at-tempt to make the "perfect" animal, the outcome of selective breedingis unpredictable. It is uncertain whether the desired trait will defi-nitely appear in the offspring because the breeder cannot select one

65 Id. at 1409.

66 Id.67 Carrie F. Walter, Beyond the Harvard Mouse: Current Patent Practice and the

Necessity of Clear Guidelines in Biotechnology Patent Law, 73 IND. L.J. 1025 (1998).68 Blunt, supra note 3, at 1380. "Cows have been bred which produce more milk.

Dogs have been bred from wolves and refined to provide a variety of services tohumans." Id. at 1380-81.

69 Michael E. Sellers, Patenting Nonnaturally Occurring, Man-Made Life: A Practi-

cal Look at the Economic, Environmental, and Ethical Challenges Facing 'Animal Pat-ents", 47 ARK. L. REV. 269, 270 (1994).

70 Id.

71 Blunt, supra note 3, at 1382.

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trait without transporting other potentially less desirable traits intothe animal. 72

In an attempt to resolve the undesirable effects of selective breed-ing, scientists created biotechnology.73 Biotechnology uses living orga-nisms or substances from those organisms to make or modify aproduct, to improve animals, or to develop microorganisms for specificuses.74 Current biotechnology, also known as "genetic engineering orgenetic manipulation, is based on the premise that genetic informationencoded by DNA and arranged in the form of genes... can be manipu-lated in various ways to achieve certain goals."7 5 "Genetic engineeringallows a broader range of modification" and allows specific genetic ma-terial to be transferred between species with more predictable re-sults.7 6 Unlike selective breeding, genetic engineering allows thescientist to choose the desired traits, without importing the undesiredgenes. In addition, genetic engineering reduces the amount of time re-quired to produce animals with the desired traits from years to meremonths.7 7 However, similar to selective breeding, genetic engineeringdoes not eliminate the risk that the gene responsible for the desiredcharacteristic might not be passed onto the offspring.78 In addition,even if the gene is passed on, there remains the possibility that thechosen offspring will still not exhibit the desired trait.7 9

The process through which the animals are manipulated furtherlimits the success of genetic engineering. "Genetic engineering of ani-mals is ... carried out by a rather crude method in which several hun-dred copies of the gene ... are simply inserted into a fertilized egg."80

Despite the apparent good odds, this procedure has a ninety-eight per-cent failure rate, meaning 9.8 times out of 10, the injected gene fails toinsert itself into the host DNA.8 1 Consequently, the contributions ofgenetic engineering are likely to be confined to making relatively mi-nor modifications in pre-existing animals.8 2 Nevertheless, supportersof selective breeding and genetic engineering argue that the proce-dures will continue to provide humanity with more "palatable food...

72 Sellers, supra note 69, at 270 (citing Patents and the Constitution: Transgenic An-

imals: Hearings before the Sub-committee on Courts, Civil Liberties, and the Adminis-tration of Justice of the House Committee on the Judiciary 100th Cong., 1st Sess. 34(1987)) (statement of Dr. Thomas Wagner, Edison Animal Biotechnology Center).

73 Id. at 271.74 Id.

75 Robert F. Blomquist, Cloning Endangered Animal Species?, 32 Vi. U. L. RE%,.383, 389-90 (1998).

76 Blunt, supra note 3, at 1381.77 Id

78 Id. at 1382.

79 Id.

80 REiss & STRAUGHAN, supra note 5, at 177.

81 Id.

82 Blunt, supra note 3, at 1382.

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new and improved medicines, [and] will enhance our aestheticsensibilities."83

A. Examples of Biotechnology

Although biotechnology was originally developed within the scien-tific research community, its "commercial application was quickly rec-ognized."84 Genetically engineered mice are primary models for suchhuman diseases as cystic fibrosis, muscular dystrophy, and variousforms of cancers.8 5 Mice are considered excellent experimental ani-mals because they reproduce quickly and can be kept easily, cheaply,and conveniently in the laboratory.86 These mice are used to study theprogression of human disease and to act as "guinea pigs" for the test-ing of medications which will eventually be used on humans87

In 1988, the first animal patent was granted to a mouse developedby Phillip Leder and his colleagues at Harvard Medical School.88 TheOncomouse was genetically engineered with human genes that makethe mice susceptible to developing cancer.8 9 These mice "develop[ed]tumors in a variety of places including mammary tissue, blood, skele-tal muscle, the lungs, neck, and groin."90 These tumors typically ulcer-ate and may lead to extreme weight loss.91 Besides these intendedresults, some "Oncomice have suffered limb deformities as a side effectof the genetic manipulation."92

Although genetic engineering is perceived by most to be limited tomedical laboratories, genetically engineered animals exist elsewhere.A common objective of genetic engineering is to boost the productivityof farm animals. "The largest amount of research has gone into in-serting growth genes into fish, pigs, chickens, sheep, and cows."93 Thegoal of this research is to either cause the altered animals to grow big-ger, at an expedited rate, or to create leaner meat.94 However, not allof the experiments have proved successful.

One such illustration is the story of the Beltsville Pigs. These pigswere injected with a human growth hormone in order to create leanerpork products for the meat industry.95 The results were disastrous. 96

83 Blomquist, supra note 75, at 397.84 Dan L. Burk, Introduction: A Biotechnology Primer, 55 U. PiTT. L. REV. 611, 621

(1994).85 REiss & STRAUGHAN, supra note 5, at 170.86 Id. at 169.87 Id. at 171.88 Id. at 170.89 Cynthia M. Ho, Building a Better Mousetrap: Patenting Biotechnology in the Euro-

pean Community, 3 Duix J. COMp. & INT'L L. 173, 173 (1992).90 REISS & STRAUGHAN, supra note 5, at 178.

91 Id.92 Id.93 Id. at 174. See generally ANIMALS WITH NOVEL GENES (N. Maclean ed. 1994).94 REiss & STRAUGHAN, supra note 5, at 174.95 Id.96 Id.

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The animals became arthritic, impotent, somewhat blind, and devel-oped ulcers. 97

The Oncomice and Beltsville Pigs are examples of "cases wheregenetic engineering has undoubtedly led to animal suffering."98 Theexperiments on the mice clearly warned of what types of detrimentaleffects growth hormones could have on livestock. Yet, experimentswith growth hormones continue with similar harmful results. While itis clear that science has caused this suffering, it is unclear whether thelaw can alleviate it.

B. The Effect of California's Anti-Cruelty Law on Selective Breeding

Although selectively breeding animals to produce painful muta-tions is difficult to prosecute under anti-cruelty statutes, it may be le-gally punishable. In November 1998, the public was shocked to hearthat a feline breeder intentionally bred a litter of kittens to exhibitseverely deformed front legs.99 The breeder, Vickie Ives Speir, pro-duced these "Twisty Kats" by breeding two polydactyl felines, whichcarry and exhibit a recessive gene that produces tiny malformed frontlimbs.'0 0 This condition is known as radial hypoplasia, in which all orpart of the long bone from the elbow to the wrist is missing. 10 ' Thisgenetic mutation leaves the cat with malformed front legs, whichforces the kittens to hop like kangaroos.' 0 2

Speir says the experiment "was designed to breed a cat that wouldreproduce less readily[, I be less likely to harm birds and other animals... and be less likely to run away and become wild."10 3 However, three

of the five kittens in the litter were so deformed Speir decided to neu-ter them.' 0 4 One kitten exhibited severely twisted front legs without avestigial foot, meaning she had no pads on her wrists.'0 5 A veterina-rian had to wrap her paws with tape in order to prevent her from rub-bing sores on her twisted feet as she walked.106 Another kittenexhibited a severe twist in its right shoulder joint, rendering the rightleg virtually useless.' 0 7 The same kitten's left leg had four toes and

97 Id. Other animals suffered as well. Sheep injected with similar growth hormonessuffered from diabetes and high mortality rates. Id.

98 Id. at 177.99 Carlos Tejeda & J.C. Conklin, Mutant Kangaroo-Like Cats Breed Controversy, OR.

ANGE Comntr REG., Nov. 29, 1998, at A29. Other examples of the effects of selectivebreeding in animals exist; however, for the sake of brevity, this comment focuses on theexample of the Twisty Cats.

100 Tejeda & Conklin, supra note 99. A polydactyl feline is a cat with six toes. Wan-sTEr's TmnD NEW IrrERNATIONAL DIcroNxARY 1757 (3d ed. 1986).

101 Ranny Green, Texas Twisty Cats Create the Wrath of Purebred Registries andBreeders, SAsrTLE TiIms, Jan. 10, 1999, at H7.

102 Id.103 Tejeda & Conklin, supra note 99.104 Green, supra note 101.105 Id.106 Id.107 Id.

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was shorter than its right limb.' 0 8 Sadly, these cats "resemble the chil-dren crippled by the effects of Thalidomide."10 9 However, despiteheavy criticism, Speir maintains her contention that these animals are"fat and happy, sleek and sassy."110

According to Speir, she has no intention of marketing the mutatedkittens, although one kitten was sold to an Oregon family before thecontroversy erupted."1 Although the likelihood of achieving a finan-cial gain is uncertain, these genetic alterations could have economicadvantages for breeders in the future. Hopefully, public outcry againstdeforming mutations will curb the demand for mutated cats. Even ifthese or similar mutations are determined to be necessary, the founda-tion to assert that it is legally reasonable remains weak andunattenuated.

Legally, there may be recourse available against Speir and otherselective breeders. Section 597(b) of the California Penal Code prohib-its subjecting any animal to needless suffering, or inflicting unneces-sary cruelty upon the animal. 112 Suffering includes the breeder'sknowledge, awareness or foreseeability that the animal is 1) suscepti-ble to pain, 2) is in pain, 3) has been in pain, or 4) will be in pain. 113

The definition of pain includes "stress, discomfort, distress, anxietyand fear."114 Although the extent to which animals feel pain is contro-versial, an increasing number of philosophers and biologists agree thatmost mammals are capable of suffering pain. 15 The most difficultquestion remains ambiguous: under the anti-cruelty statute, whatlevel of animal suffering is permissible under "incidental" to humangain but becomes illegal as "needless suffering" or "unnecessarycruelty?"

In order for the prosecutor to convict Speir for her selective breed-ing under the California Penal Code section 597(b), the prosecutormust first show that Speir intentionally and voluntarily "committed anact from which harm to the animal[ I was reasonably foreseeable."" 16

Speir voluntarily bred two mutated cats that exhibited radial hypopla-sia with the intent that the litter produced would also exhibit the de-formity.117 She had already seen the difficulty that the deformitycaused the first two cats and how the mutation restricted their move-ment and ability to function as normal cats, not as kangaroo or "TwistyKats." Since she bred these cats for the purpose of perpetuating the

108 Id.109 Id. (citing a statement made by a representative of The Cat Fanciers Association,

one of two largest cat registries in the United States).110 Maggie Haberman, Cat Lovers: It's Bad Twist to a Sicko Craze, N.Y. POST, Nov.

29, 1998, at 9.111 Tejeda & Conklin, supra note 99.112 CAL. PENAL CODE § 597(b) (West 1999).113 REISS & STRAUGHAN, supra note 5, at 176.114 Id.115 Id.116 People v. Farley, 33 Cal. App. 3d Supp. 1, 1 (Ct. App. 1973).117 See discussion supra notes 100-01.

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mutated trait, the suffering that she caused the kittens was foresee-able. Under the Farley standard,118 the prosecutor could prove intent,voluntariness, and foreseeability. Therefore, selectively breeding thekittens to exhibit radial hypoplasia would satisfy the negligence stan-dard imposed by some courts.119

On the other hand, since courts have also required proof of crimi-nal negligence in certain cases, the prosecutor may have to satisfy thethree prong test in Speegle.120 First, Speir, as an owner and breeder isresponsible for providing care for the animal. Second, causing suchhorrible mutations would likely satisfy the "grossly negligent act"prong. In addition, some animal breeders consider the interferencewith the essence of the feline species to be a very careless undertak-ing.121 Consequently, causing the mutation of a species which willmost likely result in a severe deformity that will impair the animal'snormal abilities can be considered reckless. Finally, since the deformi-ties result in restricting the cats from functioning normally, their liveswere threatened by Speir's acts. According to the Speegle court, thisanalysis would likely satisfy the "grossly negligent" standard requiredto establish unnecessary suffering. 122 Satisfying Speegle, the prosecu-tor would be able to secure a conviction under both mens rea interpre-tations of the California Appellate Court.

In addition to selectively breeding cats, bulldogs have been selec-tively bred to accentuate the exhibition of the protruding lower jaw,which most in society think is a natural characteristic of the animal. 123

This painful mutation exists to satisfy humans' ideal of what is aes-thetically pleasing. As a result, some bulldogs are born with "such ex-tremely cleft lips and palates that they have trouble eating."124

Section 597(b) of the California Penal Code forbids depriving ani-mals of "proper food, drink, or shelter."125 This example of selectivebreeding could likely constitute depriving the animal of necessary foodsince the mutation selectively bred for by humans has dispossessed thebulldog of the ability to eat. The difficulty in establishing a violation ofthe anti-cruelty statute is that often what appears to be "cruel and

118 Farley, 33 Cal. App. 3d Supp. at 1.119 See discussion supra notes 54-58.

120 People v. Speegle, 53 Cal. App. 4th 1405 (Ct. App. 1997). See discussion supra

Part III.B.2.121 Green, supra note 101. Organizations such as the International Cat Association

and the Cat Fanciers Association have expressed concern over the interference with theexpression of the "catlike essence." Id-

122 Speegle, 53 Cal. App. 4th at 1413.

123 Tejeda & Conklin, supra note 99.124 Id.125 CAL PENAL CODE § 597(b) (West 2000). Jury instructions have elaborated on the

statute stating that failure to provide "proper food, drink, or shelter, in a grossly negli-gent manner, is guilty of felony cruelty to an animal." Speegle, 53 Cal. App. 4th at 1412(emphasis added).

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unusual to some is a thing of beauty to others."126 This subjectivity,which is inherently embodied in the word "necessary," makes a viola-tion difficult to establish.127 Unfortunately, it seems that many geneti-cally engineered animal mutations, no matter how painful or cruel,can be justified as a "necessity" for humans and, thus, not a violation ofthe anti-cruelty statute.

C. The Effect of California's Anti-Cruelty Law onGenetic Engineering

Section 599c of the California Penal Code excludes laboratory andfarm animals from the protection of the anti-cruelty statute.128 Even ifthis exclusion did not exist, the genetic engineering of Oncomice andthe Beltsville Pigs would be valid within the statute under the "need-less suffering" provision of section 597(b). The Oncomice provide socialbenefit to humanity because they help facilitate the study of diseaseprogression and are therefore "necessary" tools to the discovery of acure. Similarly, had the Beltsville Pig project been successful, it wouldhave provided a comparable benefit making it "necessary" to humans.In light of the public demand for leaner pork, the improved pigs wouldhave resulted in a substantial economic profit for the food industryand, arguably, healthier consumers. 129

However, the effects of genetic engineering leave considerableroom for debate on the issue. Section 597(b) of the California PenalCode is violated when an individual or an organization "intentionally[does] an act from which harm to the animal(s)[is] reasonably foresee-able .... " 1.3 o In most instances, genetic engineering harms the animalin a reasonably foreseeable way. Humans who breed animals to exhibitpainful and debilitating traits in order to increase food production orfacilitate scientific research are blatantly violating California's anti-cruelty statute. However, this application is limited by section 599b ofthe California Penal Code, which defines cruelty as "every act, omis-sion, or neglect whereby unnecessary or unjustifiable physical pain orsuffering is caused." 131 Unfortunately, humans consider medical ad-vancement and economic growth more important than the animal'sright to live a comfortable and pain-free existence. 13 2 This balancing,inherent in the application of the anti-cruelty statute, allows geneticengineering of painful mutations to continue as long as they derive ahuman benefit.

126 Tejeda & Conklin, supra note 99 (quoting Richard Finnell, a geneticist at theTexas A&M University school of veterinary medicine).

127 See generally Speegle, 53 Cal. App. 4th at 1405-13 (discussing the test to provecriminal negligence under section 597(b) of the California Penal Code).

128 CAL. PENAL CODE § 599c (West 1999).129 See discussion supra note 94.130 Farley, 33 Cal. App.3d Supp. at 6.131 CAL. PENAL CODE § 599b (West 1999).132 Blomquist, supra note 75, at 397.

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For those animals included in the statute, another approach to se-cure a conviction for genetic engineering is to pursue a criminal negli-gence action. However, in order to establish criminal negligence undersection 597(b) of the California Penal Code, the genetic engineering"must amount to a reckless, gross or culpable departure from the ordi-nary standard of due care."13 3 It is therefore more difficult to establishculpability under criminal negligence than under the foreseeabilitylanguage of case law interpreting section 597(b).

The standard of care is not easily defined for those who geneticallyalter animals for food and scientific research because the purpose ofthe experiment or the mutation is to bring about the painful trait. Aslong as the researcher conducts his experiment in an acceptable way,according to members of the scientific community, he is adhering tothe ordinary standard of care in the field. Therefore, any resultant suf-fering would likely be the intended outcome of the mutation and there-fore deemed necessary. In the event that a mutation results in theunanticipated suffering of the animal, the experiment would likely beviewed as unproductive and discontinued, thereby making any prose-cution moot.

V. POLICY SUGGESTIONS

Selective breeding occupies a gray area between a blatant viola-tion of section 597(b) California Penal Code and a mutation that con-stitutes necessary suffering, which is exempted from the statute.Currently, a large segment of the public disapproves of the genetic en-gineering of animals. 134 In response, however, "members of industryhave suggested that unless the public is involved in the process of reg-ulating biotechnology, the public will remain suspicious of and resis-tant to it."135

Where the law cannot reach these procedures, policy avenues existto protect animals through public and industry cooperation. Onemethod to increase regulation and public participation is for each stateto establish a central regulatory agency to issue permits for biotechnol-ogy.136 If the purpose of the breeding is to produce a new or foreigntrait in an animal, the breeder would be required to apply for a permit.The application process would involve a detailed description of the pro-cedure and the purpose of the breeding.

Similar to the patent system,1 37 the centralized agency would em-ploy caseworkers who are knowledgeable about the genetic engineer-ing of species. The caseworker would review the application and

133 People v. Brian, 110 Cal. App. 3d Supp. 1, 2 (quoting People v. Peabody, 46 Cal.App. 3d 43, 48-49 (Ct. App. 1975)).

134 Dorothy W. Bisbee, Preparing for a Blue Revolution: Regulating EnvironmentalRelease of Transgenic Fish, 12 VA. ENrrL. L.J. 625, 682 (1993).

135 Id.136 Id. at 657-59.137 REISS & STRAUGHAN, supra note 5, at 170.

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render a decision based on whether the trait could potentially causethe animal suffering. This process would be subject to balancing thehuman-benefit, animal-suffering standard established within the stateanti-cruelty statute. 138 However, the caseworker would have to followa narrow definition of necessity in rendering his decision on whetherthe mutation is indeed reasonable. The caseworker's primary responsi-bilities would be to protect the integrity of the species and ensure itsnatural survival. Therefore, the animals would be afforded more pro-tection and not automatically discounted as a means to an end forhuman benefit.

The public could be actively involved, as in other permit reviewprocesses, 139 by requiring the agency to release the permit applicationinformation and allow for public comment prior to the issuance of thepermit. In addition, the agency could hold scheduled meetings wherethe public could learn about and debate the proposed mutations,thereby providing a public forum for the discussion of those importantissues.

By requiring a detailed public application for a permit to selec-tively breed or genetically engineer animals, the public would have theability to protect and potentially stop detrimental mutations. Thiswould allow the public to engage in a cost benefit analysis between thebenefit to society and the cost to the animal themselves. This approachdirectly contrasts the California anti-cruelty statute, which includeswithin its language an implied balancing test wherein the animal al-ways loses to the human need or want.' 40

VI. CONCLUSION

"Biotechnology holds tremendous potential benefits for mankind,and more potential to drastically alter the way we live than any otherprevious technology." 141 Although genetic engineering appears to beprotected from the reach of section 597(b) of the California Penal Code,selective breeding may be legally punishable under the rubric of thestatute. Since California has one of the most comprehensive anti-cru-elty statutes, this conclusion should be of concern to animal protectionadvocates. The genetic mutation of animals results in painful charac-teristics. Rapidly becoming a national problem threatening species' in-tegrity and the quality of life of many animals, action must be taken toreduce the deleterious effects of biotechnology.

138 FRANCIONE, supra note 8, at 129.139 See Clean Air Act of 1977, 42 U.S.C. §§ 7401-7671 (1994); Federal Water Pollution

Control Act, 33 U.S.C. §§ 1251-1387 (1994) (more commonly known as the Clean WaterAct).

140 FRANcioNa, supra note 8, at 129.141 David Aboulafia, Pushing RSBT: How the Law and the Political Process Were

Used to Sell Recombinant Bovine Somatotropin to America, 15 PACE ENVTL. L. REv. 603,653 (1998).

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In order to curb the egocentrism of humans, a central regulatoryagency must be established and a permit system enforced. This willregulate and help prevent cruel selective breeding and genetic engi-neering of domestic and farm animals. Alternatively, if society contin-ues to operate with the constraints and exceptions of only state anti-cruelty laws, the future is bleak; the continued rampant human muta-tion of existing species will result in the "secular equivalent ofblasphemy."

142

142 REISS & STRAUGHAN, supra note 5, at 183. According to philosopher Alan Holland,we should "be very concerned by any developments which would diminish the generallevel of freedom of sentient animals." Id.